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Power of Attorney

Updated: Jul 12, 2023

Making sure your wishes are protected…

Its not easy to think about a time when you’re no longer able to make your own decisions, but if that time comes, having a Power of Attorney (POA) can make life that bit easier.

The following information can help you make sure that your wishes are followed if – for whatever reason – you’re no longer able to make your own decisions or tell people what they are.

Whether it’s making a temporary arrangement to pay bills while you’re in hospital or appointing someone you trust to manage your affairs for the longer term, the following information will highlight the options available; helping you to decide which ones are right for you and how to go about getting them arranged.

Mental Capacity

Having mental capacity means you are able to make your own decisions and understand the implications of that decision.

Before anyone can make a decision for you, you (and they) need to know about whether you can make it by yourself.

If someone can’t understand information relating to a decision they need to make, keep that information in their mind, make a decision based on that information or communicate their decision, they are said to be unable to make that decision.

Mental capacity is different for everyone and it can change from day to day.

Taking time to understand or communicate a decision should not be mistaken for lack of mental capacity. Nor should having a certain condition. Having dementia, for example, doesn’t necessarily mean you can’t make any decisions.

The different Powers of Attorney

No one has the right to automatically take control over your finances or your care (not even your spouse). They need your authority.

A power of attorney is a way of giving someone you trust the legal authority to make decisions for you, if either you can’t make them yourself or don’t want to.

There are three different types of power of attorney:

Lasting power of attorney (LPA) – There are two types of LPA: one for health and care and one for financial decisions. The LPA for health and care can only be used if you lose mental capacity. The one for financial decisions can be used straight after it’s been registered. You can only register an LPA if you have the mental capacity to give this authority and haven’t been put under any pressure.

Key facts for financial decisions:

· You decide when you want this type of LPA to start. It could be while you still have mental capacity, or if you lose capacity.

· You choose if your attorney can make all or only certain types of financial decisions on your behalf.

· Your attorney has to keep your money separate from theirs and keep accounts to show this.

· You can ask for regular details of how much money you have and how much has been spent. You can also ask that these be sent to your solicitor or a family member.

Key facts for health and care decisions:

· Unlike LPAs for financial decisions, your attorney can only use this LPA if you no longer have mental capacity.

· You can also give your attorney permission to make decisions about life-saving treatment.

· If you lose mental capacity and don’t have an LPA in place, any decisions about your healthcare will be made by doctors. They will consult with your family, but the final decision lies with them.

Enduring power of attorney – This is what lasting power of attorney used to be called, except it was only for property and finances.

LPAs replaced enduring powers of attorneys (EPAs) in October 2007, but if you set up and signed an EPA before this date, it should still be valid.

If you still have mental capacity, your EPA doesn’t need to be registered before it is used. If you don’t, your attorney needs to register the EPA with the Office of the Public Guardian before they can make any decisions on your behalf.

Ordinary power of attorney – For decisions about your finances only – but is only valid while you still have mental capacity. It can also only be used to make decisions about your finances – not your care or anything else.

How can you use it? An OPA can be useful if, for example, you’re going into hospital or on holiday and you want someone to be able to look after your finances while you’re away. Or perhaps you’re unwell and its difficult to et to the bank or post office. You can limit the power you give to your attorney so they can only deal with certain assets, for example, your bank account, but not your home.

Choosing an attorney

Your attorney will have a lot of power and responsibility, so you need to choose a person (or people) you trust.

You could choose someone you’re close to, like a partner, family member or friend.

Alternatively, you could choose a professional, such as a solicitor. Think about who you believe would be able to make decisions in your best interests and make sure you give them the time to think about the role in advance.

Whoever you choose, they need to be 18 or over and can’t be your paid carer, unless they are exceptional circumstances, for example, if they are your only relative.

It can be a good idea to appoint more than one attorney, but you need to decide whether they will make decisions jointly or not. Also think about appointing replacement attorneys in case someone can’t act on your behalf anymore.

Acting in your best interests

How should an attorney help you make decisions – or make them on your behalf?

All attorneys need to understand and follow certain principles, which are set out in the Mental Capacity Act 2005 and its Code of Practice.

The Act says that every attorney should do the following:

· Assume you have mental capacity – The attorney must first assume that you’re able to make a decision yourself before they make it for you.

· Help you make a decision – You must be given as much practical help as possible to make your own decision before anyone decides for you. For example, if you’re better able to understand things at a particular time of day, you should be helped to make a decision then. Or you may be better able to understand or communicate using pictures or sign language.

· Allow you to make ‘unwise decisions’ – The fact that you might make decisions other don’t agree with doesn’t mean you’re unable to make them.

· Choose the least restrictive decision – Your attorney should consider all the options and choose the one that least restricts your rights and freedoms.

· Act in your best interests – This means:

§ Doing everything possible to encourage you to be part of the decision.

§ Considering your past and present feelings, especially any wishes you expressed, for example, in an advance statement.

§ Considering any of your beliefs and values tat could influence the decision.

§ Talking to other people – family, carers, or friends – who know about your feelings, beliefs and values, and can suggest what might be in your best interests.

§ Always respecting your right to privacy and recognising that it might not be appropriate to share information about you with everyone.

§ Knowing about any exceptions, such as if you have made an advance decision to refuse medical treatment.

Communicating your wishes

While you have mental capacity, you can make choices about your care. This includes the types of medical treatment you want, or would refuse, if you were unable to make or communicate your own decision in future.

You have two options available: an advance decision (sometimes called a ‘living will’ or an advance statement.

Advance decision – You can make an advance decision to refuse medical treatment. This means setting out the exact treatment you don’t want and the circumstances in which you’d refuse them.

If you decide to refuse any life-sustaining treatment, for example being put on a ventilator, you need to put this in writing, sign, and date it. Otherwise, a verbal statement is fine, but you should make sure its details are added to your medical notes, so any doctor treating you can see them.

In England and Wales, an advance decision is legally binding, so health professionals must follow it. Let your family and any medical professionals know that you have an advance decision and review it frequently to check it still reflects your wishes.

Advance decision vs Lasing power of attorney – If you have an advance decision and a lasting power of attorney for health and care – and they cover the same decision – the more recent one takes priority. If you create an advance decision after registering an LPA for health and care, your attorney can’t agree to any treatment you have refused in the advance decision.

Advance statement – An advance statement covers your preferences and values when it comes to future care. For example, this could include your religious beliefs, what you like to eat or even whether you prefer to have a bath or a shower. It isn’t legally binding but is a record of your wishes and preferences for anyone involved in looking after you.

If you lose mental capacity

If you lose mental capacity and have a power of attorney, then they will be able to make decisions in your best interest. However, if you lose capacity and you don’t have a power of attorney, things can be more complicated.

What if you lose capacity before creating a power of attorney?

If there comes a time when you can’t make a particular decision because you have lost mental capacity, and you haven’t created a valid LPA or EPA, the Court of Protection may need to become involved.

The Court of Protection can:

· Decision whether you have the mental capacity to make a decision.

· Make an order relating to your health and care decisions or property or financial decisions if you lack mental capacity.

· Appoint a Deputy to make decisions on your behalf if your lack mental capacity.

It also has broader powers to resolve disputes and protect those who have lost capacity.

Someone who wants to make decisions on your behalf can apply to the Court to be appointed as Deputy – a similar role to that of being an attorney.

The Court will consider whether you’ll need someone to make ongoing decisions for you, and whether the person applying is fit for the role. The Court usually does everything by post, so you won’t have to attend hearings.

What is a Deputy?

A Deputy has similar responsibilities to an attorney. They can only act within the authority set out by the Court, and have a duty to act in good faith, not taking advantage of their position for their own benefit. As such, they have to follow the same principles as an attorney, doing everything possible to help you make your decisions and ensuring any decisions they do make are in your best interests.

There are two types of deputy: property and financial affairs deputy and personal welfare deputy. Personal welfare deputies are usually only appointed in rare circumstances, for example, where those providing care or treatment disagree on what to do in the person’s best interests.

Being a deputy involves a lot of responsibility, so anyone asked to become one should consider whether they want to take on the role, or whether there may be someone more appropriate.

What if no one can speak for you?

If, in the future, you’re unable to make certain, important decisions and there’s no one who’s able to speak on your behalf, like a family member or friend, an independent mental capacity advocate (IMCA) must be instructed to protect your rights.

In this situation, an IMCA must be involved in decisions about serious medical treatment or a change in accommodation. They may also be involved in decisions relating to a care review or adult protection procedures. The staff in the NHS or your local council – for example, doctors, social workers or care home are responsible for instructing an IMCA.

Please don’t hesitate to contact us at Pure Heart Homecare if we can be of help.

Source: AgeUK

power of attorney

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